Judith Weerheim RUG LLM 2023
RUG LLM PIL 2023
REFUGEE AND ASYLUM LAW
READING AND LECTURE NOTES
JUDITH WEERHEIM
0
,Judith Weerheim RUG LLM 2023
Lecture 1 introduction and alienage
Reading notes
Hathaway, chapter 1: Alienage
Refugee convention: only persons outside own state can qualify as a Convention
refugee, alienage requirement. Deals only with the problem of legal protection and
status. Does not include internally displaced persons.
Primary goal = to provide legal status and protection to persons suffering the
disabilities of presence outside their own country.
Refugee = being a person who needs and deserves a specific form of protection and
being a person who can, in practical terms, be guaranteed the substitute protection
that the refugee convention is designed to deliver.
Why internally displaced people not fall under the scope? Forced migrants face
disabilities of enforced alienage + international promise of protection to those to
whom that protection can always be delivered. As citizens of a state, legal
guarantees of refugee rights, which amount at best to legal guarantees of rights
held by citizens, would clearly provide internally displaced persons with no net
benefit. + guarantee of a remedy
Once the alienage requirement is met, an individual who has a ‘well founded fear of
being persecuted’ for a convention reason is a refugee with rights under
international law.
Even the most basic refugee rights can be claimed only once a refugee comes under
the jurisdiction of a state party, so on international waters or airspace, a
refugee will not be able to claim the protections to which she is in principle
entitled. Refugee status does not depend on recognition by a state!!
Strategy to avoid the engagement of responsibility: challenge entitlement to
protection of refugees who arrive unlawfully. → use of false travel documents is
often practical necessity to access protection. Convention: does not require
lawful entry, protection cannot be withheld on that basis.
The alienage requirement is met only when the at-risk individual physically departs
her country of origin. Convention rights remain inchoate until she reaches the
jurisdiction of a state party to the Refugee convention.
Regional rules that constrain! Failure to claim protection in one’s region of
origin or in the first safe country of arrival is not grounds for refusing to
recognize refugee status.
Art. 32: prohibits the expulsion of a refugee only once a refugee is lawfully
present in a state party. Any effort to require a refugee to seek protection
elsewhere after lawful presence is established is unlawful.
Removal to other than a state party deprives a refugee of her already established
entitlement to secure enhanced protection over time as required by the convention.
Constraint: duty to avoid refoulement
Determining the state of reference:
Evaluation of refugee status must be undertaken by reference to conditions in the
refugee claimaints state of nationality.
Substitute national protection: rights owed to refugees are particularly attentive
to precisely those entitlements often reserved for citizens. ➔ determining whether
a relevant risk deprives the individual of the protection of a state of
citizenship.
Stateless persons: seen as less urgent risk. Governments less committed to
protecting stateless persons than refugees. Can be a refugee if they satisfy the
requirements of the refugee definition. Why? Stateless persons who have resided in
a country for a significant period of time may be said to have acquired prima facie
the effective nationality of the host state. = habitual residence.
1
,Judith Weerheim RUG LLM 2023
1. Restricting the scope of analysis to risk only in the last country of former
habitual residence → unjustified grants of asylum
2. Only country of reference for a stateless applicant is the place in which the
first risk of being persecuted arose
3. All countries of former habitual residence are countries of reference, status
should be recognized so long as a relevant risk exists in any one of them.
Statelessness is not per se the basis for recognition of convention refugee status.
However, where a stateless person had a national home to which she cannot return
owing to a risk of being persecuted there, refugee status is the appropriate
response.
Questions
1. What is the basic rule of 1951 Convention?
Protection of persecution, to enable people who are at risk of persecution to
leave their home and to find a new home elsewhere for as long as a risk
exists.
2. What is substitute protection? Why is it relevant for refugee law?
Substitute or surrogate protection is where another state gains
responsibility for the protection of one who is at risk, when their
own state is unwilling or unable to do so. Substitute protection is
provided for by the refugee convention and should exist only so long
as there is a risk of the one seeking protection.
3. Why do internally displaced people not fall under the scope of the
Refugee Convention?
- Alienage is required in order to be a refugee i.e. one must have
crossed a border
- Article 1 (A)(2) makes clear that a refugee is one who is outside
of their country of nationality or habitual residence
Convention only applies to people who cross international border.
Otherwise infringement sovereignty.
4. Why are national courts relevant for the interpretation of the
Refugee Convention?
Unlike, for example, the ICCPR, there is no international UN
authority with the competence to interpret and settle disputes on the
basis of the 1951 refugee convention. In practice, it is the national
courts via a ‘transnational judicial dialogue’, along with the help
of the UNHCR and expert scholars, which has led to the authoritative
definitions of the refugee convention.
No body for adjudication, national courts fill that void.
Communication with different judicial bodies.
5. Is it, according to the Schengen Borders Code, allowed to close the
borders between European Member States?
• The Schengen Agreement of 1985 essentially abolished border checks
between the countries which agreed to the arrangement (the Schengen
group). The Schengen border code does allow for the temporary closure
of borders and the criteria for such a measure is provided for in
2
, Judith Weerheim RUG LLM 2023
chapter 2 of the Schengen Code. Of course, mass border closures and
checks across Schengen took place during the early stages of the
Covid pandemic. However, the Schengen Code should not prejudice
international human rights obligations (articles 3 and 4 Schengen
code), and as such border closures to asylum seekers is in
contravention with refugee law. The EU recommendation on border
closures stated that this should not affect peoples ability to seek
asylum, though some member states still blocked asylum seekers.
Exception: shouldn’t apply to asylum seekers.
6. What kind of system proposes Hathaway?
Hathaway suggests common but differentiated state responsibility, a
shift from national to international regulation (a revitalized
UNHCR), and ultimately, more internationally regulated burden sharing
responsibility. Regarding the UN’s most recent plan, he is heavily
critical. He notes that it does not contain any clear allocation of
state responsibility or funding, and essentially no burden sharing
responsibility. He argues that the problem is not the refugee
convention, but how we apply it. Nothing in the Convention prevents
us from coming up with a model of international administration to
address the situation. His main critique is that the burden now falls
massively on very few countries
Thus a system of Joint responsibility.
7. What kind of problems climate induced migrants face?
• Climate induced migrants are generally defined as those who have
fled their homes due to climate related impact. This may include
sudden climate related disasters (eg. a flood) or slow climate impact
(eg. a longterm draught).
• Climate induced migrants face the problem that they do not
necessarily fall under the refugee convention. Many climate- induced
migrants do not cross a national border and are therefore not
considered to be a refugee, but instead are internally displaced.
Those who do cross a national border may not be considered a refugee
as the 1951 Convention demands that one needs to be persecuted on
grounds of race, religion, membership of a particular group, or
political opinion. While it is possible that this may be the case
(for example if a government refuses to help to help a particular
indigenous population who are suffering from the effects of climate
change or natural disaster), generally, they will not fall within the
scope of the Convention.
They are not covered, under persecution, difficult to classify.
Lecture notes
Terminology
Difference migrant and refugee: refugee has to go outside country. Needs to be
persecuted. Largest difference: you can be a migrant inside your own state. Migrant
can be anyone who moves inside or outside country for all different kinds of
reasons (study, work, family). Refugees have a legal status, person fleeing from
armed conflict, persecution, in need of international protection. Asylum seeker,
then you have applied for refugee status but not yet given it, in the process.
3
